State v. Hayes, 98-567.

• Decision Date: 01 March 2000
• Docket Number: No. 98-567.,98-567.
• Parties: STATE of Vermont v. Gordon F. HAYES.
• Court: Vermont Supreme Court

752 A.2d 16

STATE of Vermont v. Gordon F. HAYES.

No. 98-567.

Supreme Court of Vermont.

March 1, 2000.

Present AMESTOY, C.J., and DOOLEY, MORSE, JOHNSON and SKOGLUND, JJ.

ENTRY ORDER

Defendant Gordon Hayes, who pleaded guilty to two counts of delivery of marijuana, appeals the district court's denial of his motion to suppress. The issues raised on appeal are whether, under the federal or state constitutions, (1) any undercover investigation in a private workplace is constitutionally permitted; (2) due process requires the government to have reasonable suspicion of illegal conduct before instituting an undercover investigation in a private workplace; and (3) the court erred in dismissing defendant's entrapment defense. We affirm.

A confidential informant agreed to assist the Northern Vermont Drug Task Force with an investigation into the distribution of marijuana in the Colchester area. Informant asked his fellow employees at work whether they knew of anyone in and around the workplace from whom he could purchase marijuana.¹ Defendant was suggested as a source, and a co-worker introduced informant to defendant, who gave informant his telephone number.

Defendant received a call from informant, and he later agreed to sell informant an ounce of marijuana. Informant and an undercover police officer met defendant at the arranged time and place to make the buy. During the transaction, defendant made several comments to them suggestive of defendant's regular involvement in drug trafficking. Defendant used drug-culture slang, said that he might be willing to sell marijuana to the undercover officer, and said that, although he normally did not sell cocaine, he might be able to supply it to the officer.

The State charged defendant with four counts of delivery and one count of possession of marijuana. Defendant moved to suppress, which the court denied. Defendant then entered a conditional plea to two counts of delivery, specifically reserving his right to appeal the denial of his motion.

Defendant first contends that due process under both the federal and Vermont constitutions prohibits the government from conducting undercover investigations in private workplaces absent a reason to believe that illegal activity is afoot. This very argument has been squarely rejected by several federal circuit courts. See United States v. Allibhai, 939 F.2d 244, 249 (5th Cir.1991) (citing opinions issued by Second, Third, Seventh, Eighth, and D.C. Circuits); see also United States v. Luttrell, 923 F.2d 764, 764 (9th Cir.1991). The Fifth Circuit stated that "these decisions are premised upon the realization that `[a defendant] has no constitutional right to be free of investigation.'" Allibhai, 939 F.2d at 249 (quoting United States v. Jacobson, 916 F.2d 467, 469 (8th Cir.1990)). We note, moreover, that, unlike Allibhai, the investigation as conducted through informant did not initially focus on defendant; rather, it encompassed generally those in and around the workplace. We see no reason to find that the State violated defendant's right to due process under the federal constitution.

The State's investigation also did not violate due process under Chapter I, Article 10 of the Vermont Constitution. Although "[w]e have long recognized that, `as final interpreter of the Vermont Constitution, this Court has final say on what process is due in any given situation,'" it is defendant's burden to explain how and why this Court should interpret the Vermont Constitution as providing greater protection than its federal counterpart. State v. Porter, 164 Vt. 515, 518, 671 A.2d 1280, 1282 (1996) (quoting State v. Brunelle, 148 Vt. 347, 350, 534 A.2d 198, 201 (1987)).

Defendant says that investigations such as the one at issue here cross the "line between individual freedom and state regulation in a free society" established by due process. He has not, however, provided any reasons why the line was crossed grounded in policy or the text and history of the Vermont Constitution. See State v. Zumbo, 157 Vt. 589, 593, 601 A.2d 986, 988 (1991). We, therefore, conclude that due process under the Vermont Constitution does not require the State to have reasonable suspicion that illegal activity is occurring before initiating an otherwise legal undercover investigation in a workplace.

Defendant alternatively contends that the State acted outrageously and so contrary to principles of fundamental fairness that it violated his right to due process. He asserts that the "outrageous government conduct defense serves to prohibit law-enforcement tactics that offend principles of `fundamental fairness,' and are `shocking to the universal sense of justice,'" relying on United States v. Russell, 411 U.S. 423, 432, 93 S.Ct. 1637, 36 L.Ed.2d 366 (1973). We fail to understand why the conduct complained of here rises to such a level of opprobrium other than defendant's say so.

Defendant next argues that undercover investigations in the workplace must be based on warrants issued upon probable cause. Under Article 11, "whether the defendant conveyed an expectation of privacy in such a way that a reasonable person would conclude that he sought to exclude the public" is the fundamental question in determining if police activities amounted to a prohibited search...